17:10 - Division on Amendment 113C - Ayes: 206 / Noes: -1 - Amendment 113C agreed.
18:58 - Division on Amendment 113G - Ayes: 32 / Noes: 156 - Amendment 113G disagreed.
Earl Attlee
My Lords, we need to be a little careful about adhering to the rules of Report.
Lord Mackay of Clashfern
My Lords, the noble Baroness has referred to something that happened about 20 years ago in relation to experiments in Scotland. As she said, judges there were able to make arrangements for televising trials without any change in the statute law because there was no statute restricting that possibility. A considerable number of cases were televised under that arrangement. The television authorities put together a programme because, interested though they were in Scotland, it was nothing in comparison with the interest they had in proceedings in England, for reasons which perhaps an 18th-century Scottish judge might have speculated about. Anyway, that was the fact.
The Minister of State, Ministry of Justice (Lord McNally)
My Lords, I wonder if my noble friend will give way. I want to intervene now because what I am going to say will help the shape of the debate. I realise that my noble friend and a number of noble and learned Lords may wish to contribute. I in no way want to cut short or pre-empt that debate, but I hope that my comments will establish the context for them to comment on what the Government intend to do.
As the noble Lord, Lord Pannick, told us, we considered a similar amendment to this in Committee in July. I said that the Government were sympathetic to the concerns raised about the offence of scandalising the judiciary but we wished to consider the issue further and to consult others. In particular, before moving to reform or abolish this offence, we wished to consider whether such a step could result in a gap in the law or have an unwanted side-effect.
As the noble Lord, Lord Pannick, told us, in this we had the benefit of the work of the Law Commission, which was and is currently reviewing the law on contempt of court. As the noble Lord said, it kindly brought forward the element of its review considering scandalising the court and published a paper for public consultation in August. The commission considered three options in its consultation paper—to retain, abolish or replace the offence—and it has concluded that the offence should be abolished without replacement. Its analysis was in-depth, examining the human rights aspects and considering the arguments for and against the various options.
The consultation closed in October, and the commission published a summary of responses last month and a summary of its conclusions yesterday. I was pleased to see that several noble Lords responded with their views, and that members of the judiciary and other legal professions were also well represented. Of 46 responses, some from organisations, 32 were in favour of abolition. The remainder expressed a variety of views, most favouring a replacement offence, but I note that only two favoured retaining the offence in England and Wales, at least for now.
We have also noted other views, such as those expressed by noble Lords in Committee, and have concluded that it is right that this offence should be abolished. We therefore support the amendment. However, we also noted the Law Commission’s observation in its paper that:
“It may be necessary to clarify that the abolition of this offence does not affect liability for behaviour in court or conduct that may prejudice or impede particular proceedings”.
We support that view that abuse of a judge in the face of the court, or behaviour that otherwise interferes with particular proceedings, should remain a contempt. The new clause includes a provision that will ensure such behaviour will remain subject to proceedings for contempt of court.
In contrast to the amendment we debated in Committee, which extended to Northern Ireland, this amendment applies to England and Wales only, as the noble Lord, Lord Pannick, explained. In July, I said that we would be consulting the devolved Administrations; noble Lords must remember the criminal law is a devolved matter in both Northern Ireland and Scotland. Scandalising the judiciary is also a common law offence in Northern Ireland. As I have said, we consulted with the Minister of Justice, David Ford, who has confirmed that he does not wish the Westminster Parliament to legislate on behalf of the Northern Ireland Assembly on this offence. Similarly, the Scottish Government have also confirmed that they do not wish us to legislate on their similar common law offence of murmuring judges. Given that this is a devolved matter in both jurisdictions and under the terms of the Sewel Convention, we wish to respect the wishes of the Scottish Government and Northern Ireland Assembly in this matter.
I am grateful to my noble friend Lord Lester and the noble Lord, Lord Pannick, for bringing this matter before the House. The Government are happy to support this amendment, and through it the abolition in England and Wales of the offence of scandalising the judiciary. I hope that my intervention at the start of the debate does not prevent other noble Lords and noble and learned Lords from making observations on where we are and where we are going.
Lord Beecham
My Lords, I echo the remarks made by the Minister and by other noble Lords. We are entirely supportive of the amendment, and glad that the Government have agreed to take matters forward in the way that the noble Lord indicated.
Lord McNally
My Lords, I will clarify a point raised by the noble Lord, Lord Pannick. The Justice Committee in Northern Ireland recently agreed to proceed with an amendment to its Criminal Justice Bill that would see this offence repealed. I am sure that the words uttered by the noble and learned Lord, Lord Carswell, about his own experience will carry great weight. However, this is a devolved matter for Northern Ireland.
Lord Woolf
I also urge the Minister to do what has just been urged by the noble Lord, Lord Beecham. It is the judge’s most important duty to ensure the fairness of the trial. However, the problem identified by the noble Baroness, Lady Linklater, is one that the judge simply cannot tackle himself. There needs to be hands-on assistance of the sort she indicates. Therefore, for the same reason, I ask the Minister to give careful consideration to this.
Lord McNally
My Lords, as the noble and learned Lord, Lord Woolf, has just told us, it is the duty of the courts to ensure that defendants receive a fair trial. It therefore may be necessary to make particular efforts in the case of defendants whose understanding is limited. To some extent it will fall to the defendant’s legal adviser, or to the judge, to help meet the needs of these vulnerable defendants. From time to time courts have asserted the right to grant such defendants the assistance of an intermediary.
Statutory provision has in fact already been made in Section 104 of the Coroners and Justice Act 2009 for certain vulnerable defendants to be eligible for assistance from an intermediary when giving evidence. A defendant would benefit from this provision where their ability to participate effectively in the proceedings as a witness is compromised by a significant impairment of intelligence and social functioning; or where they are suffering from a mental disorder within the meaning of the Mental Health Act 1983.
The Government made a decision to defer implementation of Section 104 until full consideration could be given to the practical arrangements and resource implications. Although there are no immediate plans to implement these provisions, we are continuing to monitor the situation and the resource implications of doing so. However, as I said earlier, judges have on occasion granted the use of an intermediary to assist vulnerable defendants to ensure a fair trial. In fact, guidance on the process for appointing intermediaries for defendants was issued nationally to all courts last year.
Furthermore, Part 3.30 of the Consolidated Criminal Practice Direction also provides guidance on a range of other types of support that a court may wish to offer, including that at the beginning of the proceedings the court should ensure that what is to take place has been explained to a vulnerable defendant in terms they can understand. Secondly, a trial should be conducted according to a timetable which takes full account of a vulnerable defendant’s ability to concentrate. Frequent and regular breaks will often be appropriate.
I have listened to what my noble friend said and to the interventions of the noble and learned Lord, Lord Woolf, and of the noble Lord, Lord Beecham. I do not want to raise expectations as I am not sure whether I can get clearance to take this forward at Third Reading. However, I assure my noble friend that, as I have said, we are continuing to monitor the situation and are looking at the practical arrangements and resource implications of bringing in Section 104. I certainly agree to take this measure away. If I cannot bring it back at Third Reading, I will write to the noble and learned Lord, the noble Lord and my noble friend to explain why I cannot do so and what we are doing to keep this matter under review. I hope that, with those assurances, my noble friend will agree to withdraw her amendment.
Baroness Linklater of Butterstone
My Lords, I am heartily grateful to the noble and learned Lord and the noble Lord who have supported what I had to say. That support, coming from two such distinguished sources, means a very great deal to me. I hope that the Government will also pay heed to it.
I heard what my noble friend the Minister said. It is moderately cold comfort. There is none the less the possibility of further recognition of what remains quite a major injustice that is built into our system. In the mean time, I beg leave to withdraw the amendment.
Lord McNally
“Self-defenceUse of force in self-defence at place of residence
(1) Section 76 of the Criminal Justice and Immigration Act 2008 (use of reasonable force for purposes of self-defence etc) is amended as follows.
(2) Before subsection (6) (force not regarded as reasonable if it was disproportionate) insert—
“(5A) In a householder case, the degree of force used by D is not to be regarded as having been reasonable in the circumstances as D believed them to be if it was grossly disproportionate in those circumstances.”
(3) In subsection (6) at the beginning insert “In a case other than a householder case,”.
(4) After subsection (8) insert—
“(8A) For the purposes of this section “a householder case” is a case where—
(a) the defence concerned is the common law defence of self-defence,(b) the force concerned is force used by D while in or partly in a building, or part of a building, that is a dwelling or is forces accommodation (or is both),(c) D is not a trespasser at the time the force is used, and(d) at that time D believed V to be in, or entering, the building or part as a trespasser.(8B) Where—
(a) a part of a building is a dwelling where D dwells,(b) another part of the building is a place of work for D or another person who dwells in the first part, and(c) that other part is internally accessible from the first part,that other part, and any internal means of access between the two parts, are each treated for the purposes of subsection (8A) as a part of a building that is a dwelling.(8C) Where—
(a) a part of a building is forces accommodation that is living or sleeping accommodation for D,(b) another part of the building is a place of work for D or another person for whom the first part is living or sleeping accommodation, and(c) that other part is internally accessible from the first part,that other part, and any internal means of access between the two parts, are each treated for the purposes of subsection (8A) as a part of a building that is forces accommodation.(8D) Subsections (4) and (5) apply for the purposes of subsection (8A)(d) as they apply for the purposes of subsection (3).
(8E) The fact that a person derives title from a trespasser, or has the permission of a trespasser, does not prevent the person from being a trespasser for the purposes of subsection (8A).
(8F) In subsections (8A) to (8C)—
“building” includes a vehicle or vessel, and“forces accommodation” means service living accommodation for the purposes of Part 3 of the Armed Forces Act 2006 by virtue of section 96(1)(a) or (b) of that Act.”(5) In subsection (9) (section intended to be clarificatory) after “This section” insert “, except so far as making different provision for householder cases,”.
(6) An amendment made by this section does not apply in respect of force used before the amendment comes into force.”
Lord McNally
My Lords, I was going to say that these were technical amendments, but I am advised that they are not.
It would be terrifying to be confronted by a burglar in your own home. Mercifully, it does not occur very often, but when such a situation arises most people would say that the law should be on the side of the householder. After all, they are the ones who may have been woken up in the dead of night, made to fear for their safety or the safety of their loved ones and compelled to use force to protect themselves in traumatic circumstances. If householders end up being arrested, prosecuted or convicted after injuring a burglar, this can give rise to a public perception that the criminal justice system does not support the real victims in all of this. These amendments are designed to shift the balance of the law further in favour of householders to ensure that they are treated first and foremost as the victims of crime.
The current law, as clarified in Section 76 of the Criminal Justice and Immigration Act 2008, already says that people can protect themselves or others, prevent crime or protect property using force that was reasonable in the circumstances as they believed them to be. However, it also says that the use of force which was disproportionate in the circumstances will never be reasonable. This means that a householder who has acted honestly and instinctively to protect himself or his loved ones from an intruder could end up being prosecuted if his actions are deemed to have been disproportionate when viewed in the cold light of day. The Government feel strongly that householders, acting in extreme circumstances to protect themselves or others, cannot be expected to weigh up exactly how much force is necessary to repel an intruder. There may be a fine line between actions that are proportionate in the circumstances and those which might be regarded as disproportionate. The Government think householders should be given the benefit of any doubt and that Section 76 of the 2008 Act should be amended accordingly. As long as householders have done only what they believed was reasonable in the circumstances, it should not matter if those actions were disproportionate when viewed with the benefit of hindsight.
I am aware of criticisms that these changes will amount to a vigilantes’ charter; the Government do not accept that argument. All we are saying is that if householders act in fear for their safety or the safety of others and in the heat of the moment use force which is reasonable in the circumstances but seems disproportionate when viewed in the cold light of day, they should not be treated as criminals. Force which was completely over the top—grossly disproportionate, in other words— will still not be permitted.
This is not about saying that it is open season on any intruder. It is rather saying that the law will look benevolently upon any householder who, faced in his own home with the terror of someone he believes to be a trespasser, acts in a way that is reasonable in the circumstances as he believed them to be, even if the force used was disproportionate.
Noble Lords will note that the amendments are limited to householders defending themselves or others from intruders in their dwellings. The Government believe that attacks by intruders in the home cause the greatest public concern. Our home is our haven and refuge—a place where we have every right to feel safe. That is why the Government believe that householders deserve special protection. However, the provision also extends to shopkeepers who live and work in the same premises and Armed Forces personnel who may live and work in buildings such as barracks for a period of time.
We recognise that there are a range of other circumstances in which people might be required to use force—for example, to defend themselves from attack on the street, to intervene to stop crimes being committed or to protect their property. The new provision does not extend to those situations, but the current law on the use of reasonable force will continue to apply in those circumstances.
I recognise that some noble Lords might have a feeling of déjà vu as we debate these measures. We are returning to an area of the law that has been debated twice in recent years. While previous Bills clarified important aspects of the law on the use of force, the current proposals would make material changes to strengthen the rights of householders when defending themselves or others from intruders. Critics have said the changes are unnecessary because the current law provides adequate protection and householders who have defended themselves from burglars are hardly ever prosecuted. Clearly the Government take a very different view. Each case is different. Although the Crown Prosecution Service decided not to prosecute householders involved in recent cases, such as those in Leicestershire and Manchester, there might be occasions in the future where law-abiding householders benefit from these important provisions. I beg to move.
Lord Beecham
No, I want to speak now if that is all right. Thank you. Burglary is a serious crime and a particularly distressing one. The forced invasion of one’s home adds a further dimension to the effect on its occupiers. I suspect several Members of the House will have shared my experience, at least in part. My home—which, incidentally, was built by the father of the noble and learned Lord, Lord Woolf, to whom I apologise for anticipating in this debate, for reasons that I shall give later—has been burgled and my office has also been burgled once. Fortunately, little damage was done; even more fortunately, no one was present at the time. Where the householder or other occupant is present, the impact of the crime transcends distress and, too often, becomes traumatic.
I say at once that we welcome the extension of the present law to non-residential premises, such as those of shopkeepers, to which the Minister has referred. However, in relation to domestic premises, while absolutely affirming the right of residents to defend themselves and their property, we have doubts about the Government’s proposals. The amendments have been spatchcocked into the Bill at virtually the last minute, almost, it would seem, as an initiation rite performed by the new Lord Chancellor. Unlike the proposals on community sentencing, we have not had the opportunity of a general debate under the recommittal procedure. I propose therefore to treat the debate on these amendments as, in effect, a Second Reading debate, which is why I sought to speak now rather than later.
Burglary is an offence against the person as well as against property, because a break-in destroys the victim’s peace of mind by violating the safe haven of their home. The householder is not in a position to exercise calm, cool judgment. The householder is entitled to use reasonable force to get rid of the burglar; and, in measuring whether the force is reasonable or not, you are not doing a paper exercise six months later:
“You have to put yourself in the position of the man or woman who has reacted to the presence of a burglar and has reacted with fury, with anxiety, with fear”.
These are not my words—although I concur with them—but the words of the Lord Chief Justice, the noble and learned Lord, Lord Judge, commenting on the recent case of two men jailed after raiding a remote cottage, when they were blasted with a shotgun. What is significant is that his words reflect the present state of the law. Although the victims in that case were questioned by police, their Member of Parliament, Alan Duncan MP—not, I think, generally known as a bleeding-heart liberal—said:
“The police did a very good job and investigated as thoroughly as they had to when a firearm is involved”.
The first question is what the government proposal adds to the present state of the law, as enshrined by the Labour Government’s Criminal Justice and Immigration Act 2008 and the present Government’s clarification, embodied in Section 148 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012, passed only a few months ago. In my submission, it adds only confusion. It purports to allow the use of disproportionate force but not grossly disproportionate force. Can the Minister define, or even better exemplify, the difference between the two, especially bearing in mind the words of the Lord Chief Justice? What difference, if any, in his view would the amendment’s wording have had, for example, on the case of Tony Martin, who shot dead a burglar? What does the Minister make of the statement by Michael Wolkind QC, who represented Tony Martin? He said:
“The law already recognises that people react in a certain way in the heat of the moment”,
and argued that the law does not need changing.
The second element that the proposal might add to the Bill is, paradoxically and obviously unintentionally, a heightened risk to home owners. A study in Texas has demonstrated that the notorious “stand your ground” law, promoted by the US gun lobby and enacted in several US states, has led to more injuries and deaths being inflicted on householders and others by criminals, rather than fewer. Anyone who watched the recent TV programme on “stand your ground” would surely hesitate before opening the door to similar unintended consequences here, even allowing for the radically different gun culture that is such a blemish on American society.
There are other questions to be asked. Have the Government consulted the judiciary or the police on the proposed changes? If so, what responses have they received? If they have not consulted them, why not? Have they conducted an impact analysis? Your Lordships might think that a particularly fitting term in this instance for an assessment of the consequences of legislation. What is the evidence that the present state of the law, as defined by the noble and learned Lord, Lord Judge, is inadequate? The Minister has circulated what purports to be a fact sheet. Your Lordships might think that that document contains precious few facts and no evidence on which to base the Government’s proposals.
My right honourable friend Sadiq Khan sought information by means of Parliamentary Question on the number of home owners arrested or charged after defending their property against burglars since 1994. The answer was:
“The information on arrests is not collected centrally … It is not possible to match the arrests data to any subsequent outcomes”.—[Official Report, Commons, 22/10/12; col. 641W.]
The Guardian recently reported, after a review by the CPS, that there were all of seven cases—I repeat, seven cases—between 1990 and 2005 in which a householder was prosecuted. In other words, there is simply no evidence to suggest that the problem the Government purport to be addressing is significant in terms of numbers, whereas it is clear that neither the police nor the courts are going to fall over themselves to prosecute householders who react in the way described by the Lord Chief Justice.
Is the Minister suggesting that where serious injury or death is inflicted on a burglar—or even someone such as the man featured in a recent BBC radio programme who was thought to be a burglar but was apparently just a confused man trying unsuccessfully to enter what he thought was his own home—the police should not investigate the situation in a proper manner, not least in the interests of those whom they interview? I wait to see not only what answers to these and other questions emerge from this debate but what transpires when this Bill goes to the House of Commons.
I have no doubt that the Lord Chancellor will seek to portray himself as the champion of the victims. It is a pretty hollow claim on the part of a Government who are both alienating and cutting the police force; undermining community policing; presiding over the reduction of community support officers, who provide invaluable back-up to front-line policing; and savagely slashing or altogether removing compensation for the victims of crime by their changes to the criminal injuries compensation scheme. Those changes, I might add, were forced through the House of Commons by the process of mugging several Conservative members of the relevant committee, including John Redwood MP, a senior former Minister, and substituting placemen in the form of Parliamentary Private Secretaries—not much consideration for victims of crime in that context.
I repeat that we are at one with the intention to protect the householder and punish the burglar. We remain to be convinced that the Government’s proposals are sound in law and safe, from the perspective of the very people they are supposed to protect.
Lord Martin of Springburn
My Lords, I speak as a layman who has represented communities in which the whole family cannot go out for a night’s entertainment because someone has to stay in for fear of being burgled. Like many noble Lords, I know what it is like to be burgled. You feel terrible when your home has been broken into. What worries me about the provision in this amendment is that in some historical cases firearms have been used. If this amendment is passed, many people who do not want their house to be broken into again will take precautions. In the countryside, people have firearms certificates for vermin and for recreational shooting, and I know that there are some firearms certificates in the city I represented because I had to sign certificates to say that the holder was a good, decent person. With this amendment, some people will want the same protection as someone living in the countryside and will apply for a firearms certificate just in case. That is a worry. There is a big difference between someone living on a small farm having a firearm and someone living in a tenement where it is much more dangerous.
I know from my experience in another place that Ministers, some of them the holders of the highest offices in the land, indulge in sound bites. They say to the press, “People are entitled to protect their homes”. Of course they are entitled to protect their homes, but we cannot have a situation where we give a licence to someone who will decide that he is going to take a shot at a burglar and will say that it was proportionate or that he did not think about it at the time.
Part of this amendment relates to Armed Forces accommodation—barrack rooms. We are talking not about shotguns but about far more lethal firearms. A soldier could say, “I was defending myself, and that’s why I shot this intruder”. I speak as a layman. I have no experience of standing in a court and putting a case or of listening to a case, as some noble Lords have, but I think this amendment is bad news.
Lord McNally
My Lords, this has been a very thoughtful debate, and people of great experience have put their views forward. I shall try again to explain where the Lord Chancellor is coming from and to reassure noble Lords on some of the points that have been made.
In bringing forward this amendment, the Lord Chancellor wants to clarify the situation and reassure the general public. Although the last contribution from the noble Lord, Lord Martin, was not in support of my proposal, it made the point that we are trying to deal with ordinary people dealing with situations in their lives. I understand lawyers making their points, but it is important that we see this from the public’s point of view. Although some recent cases have not led to prosecution and conviction, as I said, there may be cases in future which will benefit from the additional protection and clarification we are providing. Let me be very clear again, following on from what the noble Lord, Lord Martin, said, that this is not a vigilantes’ charter. In this country, there are still extremely strict rules about the possession and storage of guns which would still apply.
This is an attempt to recognise that people confronted by burglars, and acting in fear for their safety in the heat of the moment, cannot be expected to weigh up exactly how much force might be required. In these extreme circumstances, we think they should have greater legal protection. It is certainly not a licence to kill, whatever the circumstances. People will still be prosecuted if the use of force was unreasonable in the circumstances. The use of grossly disproportionate force will never be reasonable.
It will be for the courts to determine in each case what is disproportionate or grossly disproportionate. We want to make clear though that householders, who cannot always be expected to be thinking clearly if they are confronted by an intruder, will not be treated as criminals if they use a level of force which in the circumstances as they believed them to be is reasonable but turns out to have been disproportionate. We are clear that it is not open season for vicious attacks on anyone, even an intruder.
Let us also be clear, if somebody has been killed or seriously injured, an arrest may be necessary for the police to investigate thoroughly. A revised code of arrest for the police—PACE Code G—came into force on 12 November 2012 with new guidance on the circumstances in which an arrest may be necessary. The guidance also encourages the police to consider whether voluntary attendance at an interview might be a practicable alternative to a formal arrest. The changes we are making to the law will complement the improvements made to PACE Code G.
We are not changing the fundamental premise that a person can only use force that was reasonable in the circumstances as they believed them to be. The law on the use of force in other circumstances, for example, to defend oneself on the street, to prevent crime or to protect property will remain unchanged. We are trying to rebalance the law so that householders will not be thought of as criminals but, as I said at the beginning, quite properly as victims.
I am assured that we believe that the amendment is compatible with the ECHR and that we have recently published a memorandum in support of that view which I will put in the Library of the House.
Listening very carefully, I again pray in aid although I am not saying he is in support of this particular amendment, the Lord Chief Justice, who caught the mood behind the amendment at his press conference in September. He was reported as saying that,
“I am not talking about individual cases, but I know of cases, and I do read the newspapers occasionally”,
where,
“it looks as though the householder is the criminal”.
He then pointed out the circumstance of a householder facing a burglar.
“You are probably very cross and you are probably very frightened—a mixture of both—and your judgment of precisely what you should or should not do in the circumstances cannot, as another predecessor of mine (Lord Lane) said, you cannot measure it in a jeweller’s scale”.
The realisation that in such terrifying circumstances you cannot measure it in a jeweller’s scale led the Lord Chancellor to conclude that it would be better to clarify the law in a way which he believes will be more reassuring to the householder and give better guidance to the court.
Lord Pannick
Before the Minister sits down, have the Government consulted the Lord Chief Justice and the judiciary on this matter and, if so, what has been their response to the amendment?
Lord McNally
The amendment is a government amendment, and the Government stand by the amendment.
The Parliamentary Under-Secretary of State, Home Office (Lord Taylor of Holbeach)
My Lords, I cannot promise my noble friend that the Government can be ahead on these issues but I am grateful for the opportunity to debate his amendments. I assure the noble Lord, Lord Beecham, that the Government keep the workings of the asylum process under review. Indeed, it would be wrong not to do so.
Amendment 113D would create a right of appeal whenever someone is refused asylum and granted any form of leave. As a result there would be more appeals against a refusal of asylum for a group of cases where no immediate right currently exists, and multiple appeals from individuals.
As my noble friend Lord Henley acknowledged in Committee, it is an unfortunate consequence of the otherwise very sensible 12-month restriction that some unaccompanied asylum-seeking children will experience delay in bringing an asylum appeal. My noble friend agreed to review the policy in respect of children to ensure that there were no unintendezd consequences. We have completed that review and concluded that this policy, seen in the context of the statutory appeals framework and current economic circumstances, operates as intended. As my noble friend has said, I have written to him to confirm this.
This amendment is to Section 83 of the Nationality, Immigration and Asylum Act 2002, which provides that an individual may appeal against an asylum refusal when leave is granted for a period longer than 12 months. Amendment 113D would remove the 12-month restriction and create a right of appeal against the refusal of asylum regardless of the period of leave granted. It is not unusual for short periods of leave to be extended more than once. Recent case law means that this amendment could create a right of appeal against the earlier refusal of asylum every time further leave was granted. Therefore, this amendment would have serious and undesirable consequences for the existing appeals framework as it could result in multiple fruitless appeals being used to prolong someone’s time in the UK. In the current economic circumstances, it is vital that resources are used where they are most needed. While I recognise that the intention of this amendment is to reduce delay for children and trafficked persons, the consequences for the appeals framework are not justified for the following reasons.
First, the amendment is too broad. It would extend the right of appeal under Section 83 of the 2002 Act to anyone granted leave after a refusal of asylum, not just children and trafficked persons. This would result in additional costs and resources to administer each appeal. Secondly, only a minority of unaccompanied children who claim asylum are affected by this policy in the way described by my noble friend. It would affect only those who are older than 16 and a half when refused asylum but granted some other form of leave. As we have said, these children are close to adulthood and have a right of appeal should a decision be taken to remove them after their leave runs out at age 17 and a half. This delay is not unreasonable.
Thirdly, while it is correct that trafficked persons are similarly affected, for similar reasons to those we have given in relation to children we believe that the current policy may be equitable in all the circumstances. Section 83 of the 2002 Act affects only those trafficked persons who claim and are refused asylum. It is important to remember that in all cases before a child or any trafficked person is removed from the UK, they will be entitled to a right of appeal. The Government’s policy ensures that individuals do not have multiple appeal rights over a brief period, possibly raising the same arguments on each occasion as matters may not have evolved since their last appeal. The amendment proposed would undermine this key principle of the Secretary of State’s asylum appeals framework. For the reasons set out above, we are not persuaded that the current policy for appeal rights under Section 83 of the 2002 Act, either for children or more generally, has an impact of the magnitude necessary to justify incurring additional expense in relation to appeals.
Amendment 113E concerns the Secretary of State’s powers to certify, under Section 94 of the Nationality, Immigration and Asylum Act 2002, that removing a person to a safe third country will not breach their human rights where the presumption is that the country to which the person is to be removed is safe. The effect of the certificate is that an appeal can be brought only after the person has been removed. This provision prevents appeals being used to delay removal in hopeless cases. Persons will be removed to a third country only if that country will not remove the person to another country other than in accordance with the refugee convention. If the certificate is challenged by judicial review, the court is required to regard the third country as one where the person’s rights under the refugee convention will not be breached.
Amendment 113E is tabled on the basis that Section 94(8) seeks to oust the jurisdiction of a court to consider the safety of the country of removal. It is, however, unnecessary. The courts are already able to consider whether the person’s human rights might be breached where judicial review challenges the issuing of the certificate. Once removed to the third country, an appeal may be brought and refugee convention issues can be considered. My noble friend asked for some detail here, and I will have to accept his very kind offer to allow me to write to him to give him a response to the data he was seeking.
Amendment 113E also seeks to remove those provisions in Schedule 3 to the Asylum and Immigration (Treatment of Claimants etc.) Act 2004 that reduce the circumstances in which removal to a safe third country can be frustrated on the grounds of unmeritorious claims about treatment in, or removal from, those countries. The amendment would have a considerable practical impact on removals made to other European countries under the Dublin regulation. That regulation determines which state is responsible for examining an asylum claim. It plays a key role in tackling abuse of asylum systems through the phenomenon of “asylum shopping”. Indeed, the value of the Dublin regulation to the UK is clear. Since 2004, the UK has been able to remove more than 10,000 individuals under the Dublin regulation.
It is argued that the amendments are necessary to reflect the terms of the ruling of the Court of Justice of the European Union in the case of NS v Secretary of State for the Home Department, dated 21 December 2011. My noble friend referred to this case. The Government respectfully disagree. The ruling in NS gives useful guidance on the correct approach to fundamental rights as a matter of EU law. However, as a matter of practice, it does not significantly change the approach to domestic legislation. The concept of a rebuttable presumption in legislation when considering the impact of the Human Rights Act is not new. It was firmly established by existing case law from the European Court of Human Rights in KRS v UK in 2008 and from the House of Lords in Nasseri v Secretary of State for the Home Department in 2009. What the Luxembourg court has done in NS is confirm that a similar approach should be taken when it is alleged that there is evidence of the Charter of Fundamental Rights being breached.
I turn, finally, to Amendment 113F. The effect of this amendment would be to allow an appeal to proceed where the appellant has been granted leave by the Secretary of State. The purpose of many appeals is to overturn a decision to refuse to grant leave. Consequently, it is the Government’s position that in the majority of cases an appeal should not proceed where leave has been granted. Currently, Sections 104(4A) to 104(4C) of the Nationality, Immigration and Asylum Act 2002 provide that an appeal cannot proceed where the appellant has been granted leave. The exceptions are where the appeal is brought on the ground of race discrimination or where the appeal is against a refusal of asylum and the leave which has been granted is in excess of 12 months. This is consistent with Section 83 of the Nationality, Immigration and Asylum Act 2002, which was the subject of Amendment 113D. Where the appeal does not fall into these two groups, we do not believe it is necessary or appropriate for it to proceed where leave has been granted. The appeal is unnecessary because leave has already been granted. There is no detriment caused by the absence of a right of appeal which will be cured by this amendment. However, making this amendment would have a detrimental impact as additional rights of appeal would arise, each of which represents an additional cost to the Government and the taxpayer. The increased number of potential appeals will place an additional burden on the tribunal and court systems, which are already dealing with significant numbers of immigration appeals.
We do not believe that preserving an appeal right where leave has been granted is necessarily appropriate. Frequently, the Secretary of State makes a grant of leave while an appeal is pending for pragmatic reasons. This avoids unnecessary litigation at a cost to both parties. Where leave has been granted, an appeal can proceed only on an academic, rather than an individual, basis. The tribunal is primarily a fact-finding tribunal and therefore it is not appropriate for a case to proceed before it on an academic basis only. In light of these points, and in the knowledge that I will continue to work with my noble friend and respond to his questions on this issue, I would ask him to withdraw the amendment.
Lord Avebury
My Lords, I am most grateful to my noble friend the Minister for his thorough reply to these three amendments, although—as he would expect—I cannot say that I am entirely satisfied with his response. In the case of Amendment 113D, he did not go into the consequences of giving limited leave to remain to unaccompanied children and trafficked persons—a matter which I tried to outline in moving this amendment. There is room for further examination, and if he is prepared to let me have sight of the review that was undertaken, that would be the most helpful basis on which we might proceed.
As he will have realised, these amendments were all framed by the Immigration Law Practitioners’ Association and it, too, would like to be consulted in any review that will be undertaken in the future on the implications of the present situation for these unaccompanied children and trafficked persons granted limited leave to remain. My noble friend said that the amendment was too broad; we would be perfectly happy if, as a result of further discussions bringing in the legal advice of ILPA, we could agree on a more limited version of Amendment 113D.
With regard to Amendment 113E, removing someone to a supposedly safe third country does not eliminate the right of appeal, but if you have to exercise the appeal from an overseas country with all the disadvantages that that entails in the way of consulting lawyers, obtaining written statements and so on, the right is really not worth very much. The cases we considered mean that the designation of safe third countries is not a satisfactory way of proceeding, particularly when one considers the position of LGBT asylum seekers. I mentioned them in my remarks, but the Minister did not touch on them in his reply. I realise that I was asking for detailed information about what has happened to LGBT asylum seekers who were returned to supposedly safe countries. Maybe we can review the situation once we have that information in front of us.
On Amendment 113F, I mentioned the remarks of Mr Justice Beatson and thought that maybe my noble friend would not have had time to consider that judgment. Perhaps we can pursue the matter in more detail later. He did not respond to the point that, by granting leave to remain in a series of cases that touched on the same matter of principle, the Secretary of State was avoiding any resolution of the matter of principle, which would be helpful in cutting short proceedings of the tribunals in later cases. Therefore, I do not accept what my noble friend said about the saving of time in the courts; I think the reverse is probably true, but again, perhaps we can leave this for further discussion with the benefit of advice from ILPA at a later date. In the mean time, I beg leave to withdraw the amendment.
Baroness Linklater of Butterstone
My Lords, I add my voice in agreement with much of what has already been said. What my noble friend Lady Hamwee did in drawing our minds back to the Criminal Justice Act 2003 in particular was very helpful for the purposes of sentencing. The noble and learned Lord, Lord Woolf, speaks words of wisdom and we should pay serious heed to him. He pointed out that the overarching requirement of a sentence should be decided by the judge on what is appropriate. Ultimately, I suppose that it follows that it should prevent reoffending and if the punitive element fails to meet that test it is worthless. As was made clear when we debated this in Committee, every community order is a form of punishment so the punitive element that the Government seek is de facto present. Anything additional intended to be somehow more punitive for its own sake is unnecessary, except possibly as a political gesture, and it will fail the test of reducing reoffending anyway. As the noble and learned Baroness, Lady Butler-Sloss, said in Committee, it is also “profoundly unattractive” as an idea. I liked that term very much.
The Minister has got it wrong if he believes that this is what the British public want to see happen. Indeed, there is ample evidence to show from polling that what the British public want from sentences, particularly expressed by those who have been victims of crime, is that it does not happen again. Retribution or vengeance is not sought. The Government maintain that the caveat of “exceptional circumstances”, when a specifically punitive order can be dispensed with, is tightly defined. Yet we have just spent the last 20 minutes realising that nobody can define what it is sought—the definition cannot be pinned down. This was emphasised by the noble and learned Lord who found in the past that use of “exceptional” caused nothing but confusion—he said so eloquently. For the large number of offenders for whom there is an additional punitive requirement, this may be inappropriate and even increase the likelihood of breach and so on.
The reality of a purely punitive requirement on its own principally represents the Government’s gesture of what Chris Grayling said was putting punishment back into sentencing. That is what it comes down to. It interferes with the freedom of sentencers to set an appropriate sentence based on the facts. That is a serious deficiency. We undermine judicial discretion at our peril. It also fails to safeguard those defendants with particular support needs, whether those are mental health, health needs, learning difficulties, drug addiction et cetera, to name but a few. Of course, the fact is that it is precisely this range of such support needs that represents the norm in the prison population. They are not exceptional at all—exactly what the noble and learned Baroness, Lady Butler-Sloss, just said.
To impose a punitive requirement when the offender has these difficulties without also addressing the problems constructively would clearly be unjust. I could go on further but I will finish by saying that there was very important and interesting work done for the Government by Helen Bewley. She concluded that in fact punishment probably means a curfew, a fine or unpaid work. Her work demonstrates that punitive requirements on their own have no impact at all on the likelihood of reoffending but simply reduce the number of reoffences committed. The most effective outcome was from a combination of supervision with another requirement, with a punitive element added on. If the Government themselves acknowledge the risk that undermines the very rationale for such punitive orders, particularly if used on their own, how on earth can their use in every community order possibly be justified? Indeed, the likelihood instead is more offending, breaches and a generally less safe society—the very antithesis of what is intended.
Lord McNally
My Lords, sometimes I think that debates in this House are like two flotillas of ships passing in fog and not noticing each other. Most of the debate we have heard tonight we heard at Second Reading and in Committee. I can only again express my surprise at noble Lords who I know are deeply committed to this area of the criminal justice system. We have a situation where a Conservative Prime Minister expresses his complete commitment to the concept of community sentencing and a Conservative Lord Chancellor commits himself entirely to the concept of rehabilitation and bringing those ideas into legislation. We have now had three long debates on these issues; I will again try to explain where the Government are coming from but, in the terms that noble Lords have put it, I fear I will fail to convince them again.
The concept of punishment is part of—not separate or left on its own from—what I believe is a very worthwhile package put forward in a flexible way that fully respects the independence and judgment of the court. We keep to the word “exceptional” because without it there would be the opportunity to ride a coach and horses through what we are trying to do, which is to create a tougher system of community sentences that will produce greater public confidence. Let me put that in context: in March, when these proposals were first announced and the Prime Minister announced his support for the concept, Mr Sadiq Kahn, Labour’s Shadow Justice Secretary, said,
“Cameron cannot claim these measures as his own. We support community sentences that effectively punish and reform appropriate offenders because we were legislating on tougher community sentencing long before David Cameron”.
It really is not fair to start trying to split the points that have been made about judicial discretion, which is there, nor are these free-standing punishments. It has been suggested that Part 1 of Schedule 16 is totally unnecessary and counterproductive to achieving the rehabilitation revolution. It has been suggested that there is no evidence to support requiring courts to impose punishment on offenders as part of community sentences. It is on the basis of such arguments that the noble Lord, Lord Ramsbotham, is again proposing that we do away with Part 1 of Schedule 16 entirely.
We are also considering Amendment 113GA. This would specify a list of requirements that courts might include in a community order as the punitive element. I am tempted to remind the noble Lord, Lord Rosser, that, as I have said before, the Labour Party has claimed to have punishment in community orders as part of its programme long before David Cameron became a convert.
The evidence that underpins the provision comes from victims and members of the public. Time and again, surveys have found that victims and the public see punishment as a critical purpose for community orders to deliver. I will quote only two of many. An ICM survey of victims of non-violent crime, carried out for the Ministry of Justice in 2007, found that punishment is seen as the most important part of a sentence, followed by payback to the community and then rehabilitation. More recently, research on community orders carried out this year by Victim Support and Make Justice Work found that victims,
“believe strongly in punishment and public protection”,
as the purpose of sentencing.
However, the evidence shows that the public are not confident that community orders are effective at delivering that punishment. For example, a survey carried out by Policy Exchange in 2010 found that 38% of the public perceive community orders to be soft, and a further 22% believe they are “weak and undemanding”. Similarly, the Opposition’s 2008 review of crime and justice found that the public saw community orders as a soft option, and that 90% of the public agreed that community orders should involve paying back to the community.
I remind noble Lords, as I did when the House last considered these provisions, that many of those given community orders have not committed minor offences. Some will have narrowly avoided custody. Some will have caused significant physical or mental trauma to victims through assaults. Others will have caused financial or emotional damage through theft, burglary or fraud. As a matter of principle, this Government believe that offences serious enough to cross the community order threshold should result in punishment. That is a principle with which I believe victims and the public would entirely agree. However, I do not believe that the existing community order framework gives victims and the public confidence that community orders effectively punish offenders. That is the reason we are introducing this provision.
I turn to the second concern that noble Lords have raised, which is that the provision will put the rehabilitation of offenders at risk. This will allow me to respond to the Amendment 113GB, in the name of the noble and learned Lord, Lord Woolf, which would disapply the imposition of a punitive element if the court believed that this would reduce the likelihood of preventing reoffending. Again, I will start from what victims and the public say. Of course the public do not want community orders to focus solely on punishment. The research by Victim Support and Make Justice Work, for example, found that neither victims nor the public wanted punishment to exclude efforts to rehabilitate and reform offenders. There are two important points I want to make here. One is about the public legitimacy of community orders. If the public are not confident that community orders are effective at punishing offenders, we cannot expect them to support our efforts to make them more effective at rehabilitating offenders. The second is that the public clearly recognise that this is not an either/or question. Community orders need to tackle the causes of reoffending but they also need to provide punishment. It is entirely possible for them to do both. For that reason I would argue strongly against the suggestion that a focus on punishment will prevent us from delivering improvements in reoffending rates.